As many of you will recall, Brandon Mayfield was an Oregon lawyer who was wrongly suspected of involvement in the Madrid train bombings. Ultimately he brought a civil suit, most elements of which were settled. The one claim that was not settled involved his argument that the use of FISA in his case violated the 4th Amendment, an argument that was accepted by the District Court. Specifically, that court held that the 4th Amendment forbids resort to FISA where the “primary purpose” of the investigation was criminal prosecution. The appeal has been pending for quite a while, and has been much anticipated.

Yesterday, the 9th Circuit vacated the decision below, and ordered the case dismissed for lack of standing. The full text follows below:

*1 In this appeal, we must decide whether Plaintiffs-Appellees Brandon Mayfield, a former suspect in the 2004 Madrid train bombings, and his family, have standing to seek declaratory relief against the United States that several provisions of the Foreign Intelligence Surveillance Act (“FISA”) as amended by the PATRIOT Act are unconstitutional under the Fourth Amendment of the U.S. Constitution. Although Mayfield settled the bulk of his claims against the government, the settlement agreement allowed him to pursue his Fourth Amendment claim. According to the terms of the settlement agreement, the only relief available to Mayfield, if he were to prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. We hold that, in light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family. We thus vacate the judgment of the district court.

I.

On March 11, 2004, terrorists’ bombs exploded on commuter trains in Madrid, Spain, killing 191 people and injuring another 1600 people, including three U.S. citizens. [FN1] Shortly after the bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the bombing site. On March 13, 2004, the SNP submitted digital photographs of the fingerprints to Interpol Madrid, which then transmitted them to the FBI in Quantico, Virginia. Read the rest of this entry »

A few weeks ago, Judge Kaplan rejected the argument by former GTMO detainee Ahmed Khalfan Ghailani that he has the right under the 5th and 6th amendments in the current civilian criminal proceeding to be represented by the two military lawyers who had previously represented him in connection with earlier military commission charges. The full text appears below:Cite as: 2009 WL 3853799 (S.D.N.Y.))

*1 Ahmed Khalfan Ghailani, an alleged member of Al Qaeda, was indicted in this Court in 1998 and charged with conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. An arrest warrant promptly issued. Some years later, Ghailani was captured abroad by a foreign state and turned over to the Central Intelligence Agency (“CIA”). Rather than execute the outstanding arrest warrant, the executive branch held Ghailani in CIA custody. Much later, he was transferred to secure facilities at the United States naval base at Guantanamo Bay, Cuba, where he remained until he was turned over to civilian authorities and presented pursuant to the warrant earlier this year. He now stands charged with, among other crimes, conspiring to kill Americans both here and abroad including by bombing the East African embassies.

While Ghailani was at Guantanamo, he was charged before a military commission with one of the embassy bombings. Two military officers, members of Marine and Air Force Judge Advocate General Corps, were assigned as his defense counsel. Although the military commission proceeding was aborted, Ghailani now seeks an injunction barring the Secretary of Defense from reassigning those officers to other duties and requiring that he permit them to participate fully in Ghailani’s defense in this Court. He argues that his constitutional rights to due process of law and to the effective assistance of counsel would be violated absent the full participation of these military counsel.

Facts

A. The Indictments

Ghailani first was indicted by a grand jury in this Court on December 16, 1998. The indictment, the third superseding indictment in this case, charged the existence of a broad ranging conspiracy by Usama Bin Laden and others, including Ghailani, to wage a campaign of terror against the United States. [FN1] Among the alleged means and methods of the conspiracy were (a) killing Americans abroad and (b) the bombing of the United States Embassies in Nairobi and Dar es Salaam. [FN2] Ghailani was charged with participation in the conspiracy and with substantive offenses.

The indictment in this case has been superseded many times since December 1998. Ghailani now is charged in the tenth superseding indictment, which was returned on March 12, 2001. [FN3] Unlike the third superseding indictment, the tenth alleges that the conspiracy in which he participated included among its objects the killing of Americans both in the United States and abroad. [FN4] He faces additional conspiracy and substantive charges under the current indictment, [FN5] but the broad outline of his alleged involvement in the conspiracy remains largely the same as in previous instruments.

B. Ghailani’s Capture and Detention

This Court issued a warrant for Ghailani’s arrest on the day he first was charged. [FN6] The warrant was not promptly executed, presumably because he could not be found.

*2 On July 24, 2004, Ghailani was taken into Pakistani custody. He was transferred to exclusive United States control and then held and interrogated outside of the United States by the CIA as part of a secret intelligence-gathering program. [FN7] In September 2006, President Bush ordered that Ghailani and several other “high value detainees” be transferred to the U.S. naval base at Guantanamo Bay, [FN8] where he was held in military custody for approximately 32 months.

C. The Military Commission Prosecution at Guantanamo

In March 2008, Ghailani was charged before a military commission at Guantanamo with offenses related to the 1998 embassy bombing in Dar es Salaam. A month later, Lieutenant Colonel Michael Acuff, United States Army Reserve, was assigned to represent him in that proceeding. Some time later, Ghailani requested new counsel in consequence of which Lieutenant Colonel Acuff was reassigned in August 2008. Soon thereafter, the Chief Defense Counsel of the Office of Military Commissions assigned Lieutenant Colonel Jeffrey P. Colwell, United States Marine Corps, and Major Richard B. Reiter, United States Air Force, to represent him. [FN9]

By all accounts, Colonel Colwell and Major Reiter established good working relationships with the defendant. At his October 22, 2008 arraignment before the military commission, Ghailani requested that a civilian attorney, Scott Fenstermaker, Esq., be allowed to join the defense team, but he indicated also that he wanted Colonel Colwell’s and Major Reiter’s representation to continue. Colonel Colwell and Major Reiter spent considerable time and effort preparing for Ghailani’s defense before the military commission, including several trips to meet with the defendant at Guantanamo.

D. Ghailani’s Transfer to the Criminal Justice System and His Subsequent Representation in this Court

After taking office in January 2009, President Obama suspended the military commissions and, on May 21, 2009, announced that Ghailani would be transferred to this Court for prosecution. Immediately thereafter both Ghailani and his military counsel formally requested that Colonel Colwell and Major Reiter be permitted to represent the defendant in this forum. [FN10] These requests ultimately were denied save that Colonel Colwell and Major Reiter were given permission to remain involved with the defense until October 19, 2009 so that they might effectively “transition” the case to Ghailani’s appointed civilian counsel. [FN11]

E. The Present Motion

On October 7, 2009, the defense moved by order to show cause for a temporary restraining order and permanent injunction enjoining the reassignment of Colonel Colwell and Major Reiter at the conclusion of the transition period on October 19, 2009. [FN12] Ghailani claims that such a reassignment would violate his Fifth Amendment right to due process of law and his Sixth Amendment right to the effective assistance of counsel.

It is important to note the precise manner in which the application is framed. The papers bear the caption of this criminal case followed by an additional caption styled Ahmed Khalfan Ghailani, Petitioner, against Robert M. Gates, Secretary of Defense, Respondent. They seek an injunction against the Secretary of Defense. Ghailani, however, has filed no such civil action.

Discussion

*3 This is a criminal prosecution to which the Secretary of Defense is not a party. Thus, by styling the application as one for an injunction against the Secretary, the defense has raised a number of preliminary questions, including whether the Court could and should grant relief against the Secretary in this case, assuming arguendo that relief otherwise were warranted. The Defense Department and the United States Attorney’s Office (“USAO”), moreover, have met the defense on this ground. [FN13] But the application must be viewed from another perspective as well.

In essence, the defendant claims that the United States government, the word “government” here used to refer to the United States as a whole rather than in the more limited sense used in criminal cases, where it typically refers to the USAO and the Department of Justice, threatens to act in a manner that would violate his Fifth and Sixth Amendment rights in this criminal case. [FN14] There appears to be little doubt that “[i]f … a Sixth Amendment violation is the result of ongoing government conduct, the district court … may order the cessation of such conduct” in the context of a criminal case. [FN15] There is no doubt at all that a completed violation of Fifth or Sixth Amendment rights may warrant dismissal of an indictment. [FN16] Accordingly, the Court will consider both the specific application for an injunction against the Secretary of Defense and the more general assertion that relief is warranted against the United States as part of this criminal prosecution.

I. Jurisdiction Over and Justiciability of the Motion for an Injunction Against the Secretary

A. The Standard for Injunctive Relief

“A party seeking preliminary injunctive relief must establish: (1) either (a) a likelihood of success on the merits of its case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor, and (2) a likelihood of irreparable harm if the requested relief is denied.” [FN17] The standard for a permanent injunction is the same except that the applicant must prevail, as distinguished from establishing some likelihood of success, on the merits. [FN18] In order to prevail here, then, Ghailani first must establish that the Court has jurisdiction–power–to grant relief against the Secretary if relief were warranted and that prudential considerations would permit the exercise of any such power. I begin with those questions. [FN19] The further issue whether the reassignment of Colonel Colwell and Major Reiter would violate Ghailani’s constitutional rights is common to his claims against the Secretary and for relief against the government, meaning here the prosecution, and therefore is treated separately below.

B. Subject Matter Jurisdiction

“Federal district courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute .” [FN20]

*4 Jurisdiction in this case is invoked under Section 3231 of the Criminal Code, [FN21] which provides that “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” In seeking to obtain an injunction against the Secretary, Ghailani seeks relief that is beyond the scope of that statute. The question therefore arises whether jurisdiction may be grounded in the doctrine of ancillary jurisdiction or elsewhere.

The doctrine of ancillary jurisdiction “recognizes federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them,” [FN22] essentially allowing federal courts to “assert[ ] otherwise nonexistent federal jurisdiction.” [FN23] “At its heart, ancillary jurisdiction is aimed at enabling a court to administer ‘justice within the scope of its jurisdiction.’ … Without the power to deal with issues ancillary or incidental to the main action, courts would be unable to ‘effectively dispose of the principal case, nor do complete justice….’ ” [FN24] But “[t]he boundaries of ancillary jurisdiction are not easily defined and the cases addressing it are hardly a model of clarity, [FN25] particularly in criminal cases. [FN26] Specifically, the Supreme Court has instructed that exercise of ancillary jurisdiction may be appropriate in two circumstances: “(1) to permit disposition of claims that are, in varying respects and degrees, factually interdependent by a single court, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” [FN27]

In the criminal context, district courts most often have exercised ancillary jurisdiction in order to settle state law contract disputes over attorneys’ fees related to their ongoing criminal proceedings. [FN28] However, in Stein v. KPMG, LLP, [FN29] its most recent statement on this subject, the Second Circuit held improper the district court’s exercise of ancillary jurisdiction in a criminal case over a state law contract claim against a non-party for payment of defense costs. [FN30] It explained that “when a non-party to the primary proceeding is sought to be joined as a defendant in the ancillary proceeding, the need for the ancillary proceeding and the efficiencies provided by it must be both sufficiently great to outweigh the prejudice to the non-party and to be consistent with the limited jurisdiction of federal courts.” [FN31] Its holding therefore rested on its conclusions that (1) KPMG, as a non-party to the criminal proceedings, would have been prejudiced significantly by being subjected to ancillary jurisdiction, [FN32] (2) the claim over which ancillary jurisdiction was exercised involved state law contract “matters that [we]re otherwise outside the jurisdiction conferred by the Constitution and the Congress,” [FN33] and (3) the exercise of ancillary jurisdiction would not necessarily have remedied the constitutional concerns that motivated it and there in any case were other remedies for any constitutional violations. [FN34] This case, however, is significantly different.

*5 Ghailani’s claim, in contrast to that against KPMG in Stein, is not a state law contract matter over which the federal courts otherwise would lack subject matter jurisdiction. Ghailani contends that the Secretary intends to act in a manner that would violate his rights under the U.S. Constitution. That claim arises under the federal Constitution. It would come within the federal question jurisdiction of the district courts conferred by Section 1331 of the Judicial Code [FN35] and within the waiver of sovereign immunity contained in Section 10(a) of the Administrative Procedure Act [FN36] if it were brought as a free-standing civil action. Thus, the exercise of ancillary jurisdiction would not involve this Court in state law matters that otherwise would be beyond its cognizance. Nor would it prejudice the Secretary by “subject[ing him] to what may be a different forum and different procedural or even substantive rules than would normally be involved in disposing of the claims at issue.” [FN37]

To be sure, there is one pertinent similarity between Stein and this case there is at least one other remedy for any violation by the Secretary of Ghailani’s constitutional rights–dismissal of the indictment. But that, in the Court’s view, is not sufficient to deprive it of ancillary jurisdiction to determine Ghailani’s claim. There is an overwhelming public interest in the determination of the charges against Ghailani on the merits without unnecessarily risking the possibility that any conviction, if that were the outcome, would have to be overturned on a basis that could have been avoided by a ruling prior to trial. Given the lack of any prejudice to the Secretary from determining the matter now and the fact that the claim against him raises purely federal questions that could be heard now in a civil suit in federal court, this Court concludes that the balance of considerations decidedly favors the exercise of ancillary jurisdiction to decide the merits of Ghailani’s contentions.

C. Justiciability

The fact that the Court has jurisdiction to decide the claim against the Secretary does not necessarily mean that it should do so. There are both constitutional and prudential limitations on the exercise of federal judicial power, commonly referred to under the rubric of justiciability. [FN38] In deciding whether a case is justiciable, courts must consider whether it is of a sort that courts can decide competently as well as whether they ought to do so in light of the constitutional balance of powers. [FN39]

The Constitution explicitly vests Congress and the executive with control over military affairs. [FN40] In an oft-quoted passage, the Supreme Court remarked:

“[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments…. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.” [FN41]

*6 Courts therefore have shown great deference to the political branches regarding military decisions, both at the threshold justiciability stage and when deciding the merits of justiciable cases. [FN42] “The rule of non-justiciability of discretionary military decisions,” however, “is not absolute.” [FN43] Courts consistently have held justiciable certain types of claims against the military service members’ challenges under the Administrative Procedure Act to final decisions by Boards for the Correction of Military Records, [FN44] claims that a military official acted beyond his or her powers [FN45] or that a decision was “so arbitrary and irrational that it cannot stand,” [FN46] allegations that the military violated Congressional rules or internal military regulations [FN47] and constitutional challenges to military regulations. [FN48] With respect to each of these categories the Supreme Court has determined or, at times, simply assumed [FN49] that the particular question presented was subject to judicial review notwithstanding the general textual commitment of military matters to the political branches. Ghailani’s claim, however, does not fit neatly into any of these categories, so the Court must look to more general justiciability standards.

The justiciability of a particular claim involving separation of powers concerns turns on two distinct but closely related inquiries. [FN50] First, as a general matter, a court must decide “whether the claim presented and the relief sought are of the type which admit of judicial resolution.” [FN51] If so, the court then must ask “whether the structure of the Federal Government renders the issue presented a ‘political question’–that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.” [FN52]

1. General Justiciability

In answering the first question, courts must decide whether “the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” [FN53]

Here, the defendant asserts that reassignment of Colonel Colwell and Major Reiter to other duties would violate his Fifth and Sixth Amendment rights. He asks the Court to enjoin the Defense Department from taking this action. [FN54] Determining whether a person’s constitutional rights have been violated and fashioning appropriate relief is a core, traditional function of American courts. [FN55] There is no suggestion that deciding this question would be beyond the institutional competence of the judiciary. Moreover, to whatever extent the government’s argument relies on the asserted impropriety of injunctive relief, the Court notes that injunctive relief is only one potentially available remedy should it determine that Ghailani’s constitutional rights would be violated by the intended government action. [FN56] Accordingly, Ghailani’s claim “admit[s] of judicial resolution.” [FN57] The criteria for general justiciability are satisfied.

2. The Political Question Doctrine

*7 The second justiciability inquiry concerns the constitutional separation of powers. It requires courts to define the proper scope of judicial authority in relation to the other government branches. [FN58]

As far back as Marbury v. Madison, [FN59] the Supreme Court recognized a narrow class of claims, the resolution of which is best left to the politically accountable branches of the federal government. [FN60] This widely recognized but ill-defined doctrine received its clearest and most systematic treatment in Baker v. Carr, [FN61] where the Supreme Court sketched its contours by describing six of the most common characteristics of political questions:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” [FN62]

The Court cautioned, however, that “the doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ ” [FN63] The mere fact that a case may have political overtones or consequences does not make it nonjusticiable. Rather, the court must engage in a “discriminating inquiry into the precise facts and posture of the particular case.” [FN64] “Whether a case or controversy … lies beyond judicial cognizance can only be determined by ‘a discriminating analysis of the particular question posed,’ including a consideration of ‘the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.’ ” [FN65]

Each Baker factor contemplates a different potential constitutional or prudential problem that could be created were a court to adjudicate the “issue” or “question” in the case. Before addressing these factors, then, this Court must define with specificity the issue presented. [FN66]

Both the government and the defense have spent considerable energy disputing the scope of the Court’s authority to review and enjoin the Defense Department’s reassignment of Colonel Colwell and Major Reiter. This focus, however, confuses the central question presented by Ghailani’s application with the specific form of relief requested. The precise issue before this Court is not the Secretary’s authority to order reassignment or even the appropriateness of this discretionary personnel decision in this instance. It is, instead, the question whether the effect of this decision would infringe upon the defendant’s constitutional rights. In deciding that issue, the Court need not review the Secretary’s discretionary decision or his reasoning. It need determine only whether that decision would violate the defendant’s Fifth or Sixth Amendment rights. Having precisely characterized the issue in this manner, the Court now proceeds to the Baker factors to determine whether it constitutes a political question.

*8 Most political question cases involving claims against the military have turned on a combination of the first and second Baker factors [FN67]— whether there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” [FN68] and whether there are “judicially discoverable and manageable standards” for its resolution. The Second Circuit, moreover, repeatedly has recognized the first factor as the “dominant consideration in any political question inquiry” because a textual commitment strongly indicates that the matter falls outside the scope of judicial power. [FN69] The first and second factors are not entirely separate, however, as “[t]he lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.” [FN70]

The Constitution explicitly commits control and maintenance of the military to Congress and the executive. [FN71] Pursuant to this commitment, Congress has delegated significant rulemaking and decisionmaking authority to military agencies and officials. [FN72] Whether or not a case involving military action turns on a political question, however, depends upon a more nuanced analysis as to whether the specific issue presented, as distinguished from military affairs generally, has been committed to a political branch.

In the 1970s, the Second Circuit confronted a series of legal challenges to military campaigns in southeast Asia. The different results in those cases demonstrate both the importance of properly defining the issue and the significance of the second Baker factor in political question analysis.

In Orlando v. Laird, [FN73] the Second Circuit held that the question whether the Vietnam war had been authorized by Congress and therefore was constitutional was justiciable. In so doing, it relied upon the fact that Article I, Section 8, of the Constitution, which gives to Congress the power to declare war, provided a judicially discoverable and manageable standard for deciding the war’s constitutionality. [FN74] In the same opinion, however, the Circuit concluded that the “constitutional propriety of the means by which Congress has chosen to ratify” the military action was a political question because it was “one of policy, committed to the discretion of Congress … and there are no intelligible and objectively manageable standards by which to judge such actions.” [FN75]

By contrast, the Second Circuit held nonjusticiable two other challenges to military conduct that would have required the court to determine whether particular military actions constituted continuations of a Congressionally authorized war or “escalations” that required new Congressional authorization. In DaCosta v. Laird, [FN76] it concluded that President Nixon’s decision, made without new Congressional authorization, to mine North Vietnam harbors was nonjusticiable. [FN77] Not only were such tactical decisions exclusively committed to the president as commander-in-chief, but the court held also that judicial review of that decision would require factual investigations and political policy determinations for which courts were ill-equipped. [FN78] Likewise, in Holtzman v. Schlesinger, [FN79] the Circuit held that it lacked both constitutional authority and the factfinding capacity to review the legality of military bombings in Cambodia. [FN80]

*9 Ghalani’s application is comparable to Orlando and quite different from DaCosta and Holtzman. This motion requires only that this Court apply the Fifth and Sixth Amendments to determine the constitutionality of the Secretary’s intended action much as Orlando required nothing more than the application of Article I, Section 8, to determine whether the president’s action constituted the making of war without the requisite Congressional authority. The question presented is simply whether the severance of the professional relationships between Colonel Colwell and Major Reiter with Ghailani would be a constitutional violation. Its resolution requires a purely legal determination for which the courts are particularly well-suited. Unlike DaCosta and Holtzman, it would not involve a determination of a matter textually committed to another branch or fact finding endeavors for which courts are ill equipped.

This view is consistent also with Gilligan v. Morgan, [FN81] another case that involved a civilian challenge to military policies and conduct that was held to present a political question. There, in the wake of the shootings at Kent State University, students sought “a judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard.” [FN82] The Court’s justiciability analysis first concluded that “there [was no] relief a District Court could appropriately fashion.” “The [declaratory and injunctive] relief sought by respondents, requiring initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, would … embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.” [FN83] Furthermore, the Court noted that discretionary choices regarding “evolving methods of training, equipping, and controlling military forces” were best left to military professionals. [FN84] Accordingly, the Court held the claim to be nonjusticiable based on a combination of factors: “[t]he advisory nature of the judicial declaration sought,” the fact that “the questions to be resolved on remand are subjects committed expressly to the political branches,” “uncertaint[y] as to whether a live controversy still exists,” and “the infirmity of the posture of respondents as to standing.” [FN85] It noted, however, that “we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel….” [FN86]

Unlike cases that courts have found to turn on political questions, this motion does not ask this Court to “review” a military decision or otherwise act beyond its constitutionally prescribed role and institutional competence. It need not insert itself into the military’s decisionmaking hierarchy, second-guessing discretionary decisions as in Gilligan. Nor is it asked to discover or evaluate, as a factual matter, the bases on which the Judge Advocates General of their respective military branches have decided to reassign Colonel Colwell and Major Reiter. The motion instead asks only that it decide the legal effect that these military decisions would have on the defendant, a function to which it is well-suited. Furthermore, unlike the situation in Gilligan, appropriate relief could be fashioned in this case.

*10 These considerations suggest that the particular question at issue in this case is committed to the judiciary rather than the political branches. [FN87] The mere fact that the controversy involves military personnel decisions does not render it a nonjusticiable political question under the first two Baker factors. [FN88]

Baker’ s other four factors are easily dispatched. Factors four through six “appear to be relevant only if judicial resolution of the question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests.” [FN89] “The greater the scope of a military decision and the more far-reaching its effects, the more it assumes the aspects of a political determination, which, in and of itself, is not subject to judicial second-guessing.” [FN90]

Here, the Court’s review of the effect of the Secretary’s decision would be quite narrow. Adjudication of the motion would judge the constitutional effect, not the wisdom, of the decision to reassign Colonel Colwell and Major Reiter. Such judicial action would not require an initial policy determination, nor would it necessarily contradict or be incompatible with the military’s reassignment of these officers. Colonel Colwell and Major Reiter’s superior officers presumably balanced a variety of military needs and interests in making their staffing decisions. The Court, however, need only determine the constitutional effect of those decisions, an inquiry which would implicate different facts and concerns and imply no disrespect for the staffing decision made by a coordinate political branch. The fact that adjudication of the defendant’s rights might prove inconvenient for a coordinate department is not the sort of constitutionally cognizable “disrespect” the political question doctrine seeks to prevent. [FN91]

The Secretary and the USAO rely, in support of a contrary conclusion, upon cases involving intramilitary immunity. This line of authority, which began with Feres v. United States [FN92] and has been followed by a series of Supreme Court and Second Circuit cases, has restricted the types of suits that service members may bring against the military, [FN93] including in some instances suits challenging personnel decisions. [FN94]

The intramilitary immunity cases do not go as far as the government would have them. At least some suits by service members for equitable relief “designed to halt or prevent … constitutional violation[s] rather than [to recover] money damages” [FN95] are permissible. [FN96] But this ultimately is beside the point.

The intramilitary immunity doctrine most frequently has been justified by three considerations specific to the intramilitary context: (1) military life and discipline necessitate greater restrictions on individual rights, [FN97] (2) intramilitary suits may detrimentally affect military discipline in light of the “peculiar and special relationship of the soldier to his superiors,” [FN98] and (3) an internal military justice system is available to redress service members’ grievances. [FN99] But Ghailani is not a member of the armed forces. Considerations of military life and discipline are not relevant to his situation, and he has no remedies within the military justice system and no further practical avenue for relief within its administrative structure. In consequence, the intramilitary immunity cases–although both the intramilitary immunity and political question doctrines stem from similar structural and policy concerns, and courts understandably and frequently have transplanted language and reasoning from one doctrinal line to the other–are not compelling here. The issue tendered by Ghailani’s motion is not a political question.

* * *

*11 In the last analysis, Ghailani asks this Court to decide only the constitutional effect of the Secretary’s intended action, not the propriety or wisdom of his decision to act in that manner. Defining and protecting constitutional rights is a core function of the judiciary and one that this Court cannot and should not abdicate. Accordingly, the Court holds that Ghailani’s motion for relief against the Secretary of Defense is justiciable. As his rights to relief against the Secretary and against the government, meaning here the prosecution, are coextensive, I treat the issue as one.

III. Ghailani’s Constitutional Claims

A. The Due Process Claim

Ghailani asserts that his relationship with Colonel Colwell and Major Reiter is unique. He was rendered involuntarily into CIA custody and placed in a secret interrogation program that, in Ghailani’s words, “created a situation where it is highly likely that [he] would have difficulty forming a productive attorney-client relationship with his attorneys.” [FN100] When he was moved to Guantanamo and charged before a military commission, Colonel Colwell and Major Reiter were assigned to him by the military. Notwithstanding what he suggests were near-insurmountable difficulties created by the U.S. government, he came to trust these officers to a degree that perhaps could not be equaled with new counsel. [FN101] The president then suspended the military commissions and elected to prosecute him in this Court whereupon the Secretary has determined to deprive him of assistance of these valued lawyers. This, he argues, is egregiously unfair and would deprive him of due process of law.

The Fifth Amendment guarantees criminal defendants “fundamental fairness” throughout the criminal process. [FN102] Nevertheless, “[w]here a particular [constitutional] Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process” must be the guide for analyzing [a] claim[ ].’ ” [FN103]

The Sixth Amendment attaches upon indictment and thereafter guarantees the right to effective assistance of counsel. [FN104] The government conduct at issue in this case–the Defense Department’s reassignment of Colonel Colwell and Major Reiter–is occurring post-indictment and therefore is properly governed by the Sixth rather than the Fifth Amendment. The defense’s reliance on United States v. Stein [FN105] for a contrary view therefore is misplaced. Indeed, the Court’s due process analysis there concerned pre-indictment government conduct. [FN106] Accordingly, Ghailani’s claim rises or falls on the Sixth Amendment. [FN107]

B. The Sixth Amendment Right to Counsel Claim

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” [FN108] For a criminal defendant who can pay for representation, this encompasses the right to choose his or her own legal counsel. [FN109] Indigent defendants like Ghailani also are entitled “to assistance of counsel, by appointment if necessary, in a trial for any serious crime.” [FN110] However, “[t]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” [FN111] “The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” [FN112]

*12 In large part, this reflects the Supreme Court’s interpretation of the Sixth Amendment as fundamentally more concerned with fostering an effective adversarial system than with ensuring satisfying attorney-client relationships. [FN113] Indeed, the Court specifically has “reject[ed] the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.” [FN114] In the same vein, the Second Circuit has held that “there is no constitutional right to continuity of appointed counsel.” [FN115] Indeed, the Criminal Justice Act provides that a court “in the interests of justice” may “substitute one appointed counsel for another at any stage of the proceeding.” [FN116]

Defense counsel correctly note that the military justice system does recognize a qualified right to continuity of counsel [FN117] which, if it applied here, might require a showing of good cause for the reassignment of these officers. But the more generous protection of the right to counsel afforded in the military justice system is grounded in the Uniform Code of Military Justice and military regulations, not the Sixth Amendment. [FN118] Accordingly, the military analogy lends no support to Ghailani’s argument. He is entitled to, and is receiving, representation of appointed counsel at public expense. He is not entitled to choose particular government-paid counsel–military or civilian–and he does not have a right to the continued services of previously appointed counsel. [FN119]

Conclusion

Colonel Colwell and Major Reiter have performed a service to their country as well as to their client by their steadfast devotion to his cause. Their professionalism in seeking to remain in the case is admirable. The Secretary’s decision to reassign them, however, does not violate Ghailani’s rights.

The defendant’s motion [DI 791], whether treated solely as one for preliminary and permanent injunctive relief against the Secretary of Defense or as one to dismiss the indictment or for other relief, based on the alleged violation by the United States of his Fifth and Sixth Amendment rights is denied. The foregoing constitute my findings of fact and conclusions of law.

Erika Myers American Journal of Criminal Law, Vol. 35, No. 2, pp. 201-240, 2008
The War on Terror has provoked much discussion on the proper role of law in war. A considerable amount of this debate has centered on the idea of lawfare: the use of international law as a weapon of war – usually by weaker states or unconventional combatants, and usually to America’s disadvantage. This Note examines this theory of lawfare through our experience with military tribunals in the Mexican War; it provides the most extensive study to date of the use of military commissions and councils of war during that conflict. Other articles have surveyed the history of American military tribunals from the Revolutionary period to the present, primarily focusing on the balance of power between the legislative and executive branches over military tribunals in the absence of specific legislation. Few, however, have devoted any significant attention to the Mexican War, and none have thoroughly explored how the Mexican War tribunals functioned as part of the American occupation strategy. This Note argues that General Scott used military tribunals as part of a counterinsurgency strategy, developing innovations tailored to the needs of his occupation yet exceeding the requirements of international law, and that this strategy worked to hamper public support for and decrease the effectiveness of unconventional enemy combatants. This Note is also the first to relate this history to the idea of lawfare, using it to challenge the common perception that lawfare is a strategy of America’s enemies, by showing how Scott used lawfare to American advantage in the occupation of Mexico.

This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases – Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, the Supreme Court held that President Lincoln’s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued to order the detention of suspected Confederate sympathizers and conspirators. After Milligan, Congress stripped the Court of jurisdiction over habeas corpus appeals, and military occupation and trials continued throughout the South – an outcome accepted by the Court in McCardle. The remarkable lack of deference to the political branches during provoked reactions by the political branches that undermined the Court as an institution. Chief Justice Taney and Justice Davis wrongly believed that the Court had the final and immediate authority to resolve constitutional questions, regardless of the wartime circumstances. The Court’s attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court’s history.

U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.

The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.

Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.

A recent decision by U.S. District Judge Vaughn R. Walker in the Northern District of California, al Haramain Islamic Foundation, Inc. v. Bush, has revived a question of national security law and policy long thought to be settled – is control over access to classified information entrusted to the sole discretion of the Executive Branch, and if so can the Judiciary review that determination? Although this case began as an attempt to challenge the constitutionality of the recently discovered Terrorist Surveillance Program (“TSP”), it may present the U.S. Court of Appeals for the Ninth Circuit with an opportunity to rule on the ability of the Executive Branch to protect sensitive military and national security information.

This article will evaluate the District Court’s recent discovery orders in al Haramain Islamic Foundation, Inc. v. Bush, focusing on the debate that has ensued over which branch of the United States Government is entrusted with control over access to sensitive national security information. Part I of this article will detail the background and procedural history of the al Haramain litigation, highlighting the facts and circumstances that make the plaintiff unique in the multitude of challenges to the Bush Administration’s Terrorist Surveillance Program. Part II examines the debate over access to classified documents generally as well as the specific issues highlighted by the al Haramain litigation, ultimately concluding that the District court ignored long standing precedent for judicial restraint in cases involving Executive Branch determinations over access to classified material. Finally, Part III proposes a variety of possible solutions that each of the coordinate branches could undertake to resolve the underlying dispute in the al Haramain litigation.

The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. Since the terrorist attacks of September 11, 2001, that metaphor has been invoked regularly to explain the need for a trade-off between liberty and security. This Article focuses on challenges to balancing that are either unique or somehow exacerbated in the context of responding to violent crises. Drawing on cognitive theory of decision-making under conditions of uncertainty it suggests that balancing processes, in general, and those seeking to balance such interests as liberty and security, in particular, are likely to suffer from identifiable biases. This indicates that the outcomes of such delicate and complex balancing acts are likely to be distorted and thus sub-optimal. While the theory does not, necessarily, make claims as to what the equilibrium between the competing interests ought to be at any given context – for example, it does not seek to determine what an acceptable level of risk from terrorist attacks ought to be – it does suggest that once such a decision is made, the analysis that decision-makers perform in particular cases and in adopting specific counter-measures is likely to be significantly flawed. Perhaps even more importantly, it suggests that such flaws are systematic and that they are going to be tilted in one direction – i.e., towards more security – than the other, i.e., more liberty. The systematic nature of the biases that are identified suggests that failure to address them may turn the mistakes and errors that are discussed in the paper into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.

Federal prosecutors have added new charges against Headley, linking him to the Mumbai attacks. They also announced that Headley is now cooperating in the investigation. Details here.

2. United States v. Rehman (N.D. Ill.)

In the same press release, prosecutors also announced charges against Abdur Rehman, a former Pakistani soldier said to have been involved with Headley and another in a plot targeting a Danish newspaper (under the auspices of LET and another group). From the same press release linked above:

The two-count complaint unsealed against Abdur Rehman, which was filed on Oct. 20, 2009, charges him with conspiracy to murder and maim persons in a foreign country, and providing material support to that foreign terrorism conspiracy. Abdur Rehman allegedly participated in the planning of a terrorist attack in Denmark, coordinated surveillance of the intended targets, and facilitated communications regarding the surveillance and planning with a member of Lashkar and Kashmiri.

Abdur Rehman, who was not named previously but whose alleged participation was described in the initial charges against Headley and Rana, allegedly played the central role in communicating with Headley and facilitating contacts with other co-conspirators in Pakistan, including members of Lashkar. During Headley’s trip to Pakistan in January 2009, Abdur Rehman took him to the FATA region of Pakistan to meet with Kashmiri and solicit the participation of Kashmiri and his organization in the planned attack on the Danish newspaper, according to the complaint against Abdur Rehman. A search of Headley’s luggage when he was arrested revealed a list of phone numbers, including a Pakistani number that he allegedly had used to contact Abdur Rehman.

The count against Headley charging conspiracy to bomb public places in India that resulted in deaths carries a maximum statutory penalty of life imprisonment or death. All of the other counts against Headley carry a maximum of life imprisonment, except providing material support to the Denmark terror plot, which carries a maximum prison term of 15 years.

3. Congressional Research Service on the comparison between the new Military Commission system and civilian criminal process

Hungary (unnamed detainee, someone identified as being from the West Bank):

As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, the detainee was approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer the detainee at least 15 days before his transfer.

Late last night, a detainee originally from the West Bank was transferred to the government of Hungary. The government of Hungary has requested that the detainee’s identity be withheld for security and privacy reasons. The United States is grateful to the government of Hungary for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

This transfer was carried out under an arrangement between the United States and the government of Hungary. The United States has coordinated with the government of Hungary to ensure the transfer takes place under appropriate security measures and will continue to consult with the government of Hungary regarding this individual.

France (Sabir Lahmar, one of five detainees as to whom Judge Leon concluded in Boumediene the government lacked sufficient evidence to detain):

Late last night, Sabir Lahmar, a native of Algeria, was transferred to the government of France. On Nov. 20, 2008, a federal court ruled that Lahmar may no longer be detained under the Authorization for the Use of Military Force and ordered the government to take all necessary and appropriate diplomatic steps to facilitate his release from detention at Guantanamo Bay. The United States is grateful to the government of France for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

This transfer was carried out under an arrangement between the United States and the government of France. The United States has coordinated with the government of France to ensure the transfer takes place under appropriate security measures and will continue to consult with the government of France regarding this individual.

As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of each of these cases. As a result of that review, these detainees were approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer each of these detainees at least 15 days before their transfer.

Earlier today, Abel Ben Mabrouk bin Hamida Boughanmi and Mohammed Tahir Riyadh Nasseri, both of Tunisia, were transferred to the government of Italy. Both detainees are the subject of outstanding arrest warrants in Italy and will be prosecuted there. The United States is grateful to the government of Italy for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

These transfers were carried out pursuant to a Memorandum of Understanding concluded by Attorney General Eric Holder and Italian Justice Minister Angelino Alfano in September. The United States has coordinated with the government of Italy to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Italy regarding these detainees.

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush.

Laura Marie Olson
The Constitution ProjectCase Western Reserve Journal of International Law, Vol. 42, December 2009

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to the privilege of habeas corpus to challenge the legality of their detention, the D.C. District Court started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the Authorization for Use of Military Force as informed by the law of war. This article reviews how the court has delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). This analysis seeks to assess whether the court’s application of the Bush Administration’s definition of “enemy combatant” or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.

[This is both an interesting and important take on the current structure of the national security and foreign policy establishment, and a pretty good way for newcomers to get up to speed on the granular organizational details. From PNSR’s description]:

On July 26, 1947, The National Security Act was signed into law by President Harry Truman. World War II had ended just 23 months earlier. For the next 46 years, two superpowers, the US and the USSR, would vie for world dominance. That war ended in 1991. Much has changed since then.
But one thing that has not changed is America’s national security system.

The global economy. Pandemics. Terrorism. Access to oil. Global warming. Failed states. These are the types of complex issues that our world increasingly faces. National security is no longer dominated by defense and diplomacy.

Ensuring the viability and vitality of our nation and its great principles requires a wide range of talents from the federal government, state/local/tribal/territorial governments, the private sector, non-governmental agencies, academia and a host of other mission partners.

But today, the United States Government lacks the institutions, processes, and know-how to operate collaboratively and on equal plane across the federal government and elsewhere.

The US national security system is outdated and misaligned with 21st century challenges. This is the premise that launched the Project on National Security Reform (PNSR). Mandated by Congress, PNSR has analyzed the problems within the current system, is facilitating the changes that are required for meaningful transformation, and has crafted instruments required to institutionalize a new way of business — one that harnesses the full range of our nation’s power.

Turning Ideas into Action updates our progress, proposes next steps, and provides the actual implementation tools that will be required to make national security reform a reality.

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term – legal cosmopolitanism – with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos. Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes – and the legal revolution they promise – skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

This article analyzes and compares procedural rules governing military trials from the American Revolution to the War on Terror. It discusses and analyzes Presidential power during war time, particularly in light of recent Supreme Court cases concerning detainees held in Guantanamo Bay.